THE BATTLE OVER SAME-SEX MARRIAGE / Same-sex marriage ban upheld in ruling / Court says change can come only from voters or Legislature

San Francisco Mayor Gavin Newsom pauses before answering a question from a reporter during a news conference Thursday. A state appeals court upheld California's ban on same-sex marriage, dealing a critical defeat to a movement hungry for a win after high courts in two other states upheld similar bans. Associated Press photo by Ben Margot less

San Francisco Mayor Gavin Newsom pauses before answering a question from a reporter during a news conference Thursday. A state appeals court upheld California's ban on same-sex marriage, dealing a critical ... more

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San Francisco Mayor Gavin Newsom pauses before answering a question from a reporter during a news conference Thursday. A state appeals court upheld California's ban on same-sex marriage, dealing a critical defeat to a movement hungry for a win after high courts in two other states upheld similar bans. Associated Press photo by Ben Margot less

San Francisco Mayor Gavin Newsom pauses before answering a question from a reporter during a news conference Thursday. A state appeals court upheld California's ban on same-sex marriage, dealing a critical ... more

THE BATTLE OVER SAME-SEX MARRIAGE / Same-sex marriage ban upheld in ruling / Court says change can come only from voters or Legislature

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Gays and lesbians have no constitutional right to marry in California, and any change giving them that right must come from state lawmakers or the voters rather than the legal system, a state appeals court declared Thursday.

The 2-1 decision reversed a lower-court ruling in favor of plaintiffs who were among the thousands of gays and lesbians who married at San Francisco City Hall in 2004. It cleared the way for both sides to argue their case before the state Supreme Court, which will have the final say on whether the courts can give same-sex couples the right to marry.

San Francisco Superior Court Richard Kramer ruled last year that a 1977 state law defining marriage as a union between a man and a woman violated the state Constitution by denying gays and lesbians the right to marry the partners of their choice. Kramer also found that the law discriminated on the basis of sex.

By contrast, the ruling Thursday by the First District Court of Appeal in San Francisco focused on the law's roots in the traditional definition of marriage, the prerogatives of state legislators and voters to make social policy and the limits of judicial authority.

The central issue is "who gets to define marriage in our democratic society," Presiding Justice William McGuiness said in the majority opinion, which was joined by Justice Joanne Parrilli. "We believe this power rests in the people and their elected representatives."

He said there were major differences between this case and the California Supreme Court's landmark 1948 ruling that struck down the state's ban on interracial marriage. That ruling did not purport to change the traditional definition of marriage, McGuiness said. Instead, it took aim at the law's perpetuation of racial discrimination, which -- unlike discrimination based on sexual orientation -- is condemned in the U.S. Constitution, McGuiness said.

"We believe it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union," McGuinness said.

He also pointed to recent steps by the state, giving registered domestic partners the same rights as spouses under California law, as evidence that the state is not discriminating against same-sex couples. Those laws are not recognized by the federal government, however, and do not entitle same-sex partners to benefits in such areas as Social Security, income taxes and immigration.

McGuiness said the fundamental right to marry applied only to traditional opposite-sex unions.

"That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings," he said.

Dissenting Justice J. Anthony Kline said the ruling condones the same kind of bias that the state's high court outlawed in 1948. He said the majority's conclusion that laws that discriminate against gays and lesbians are more tolerable than racist laws "requires us to deny as judges what we know as people."

Kline also said the definition of marriage accepted by the appeals court -- excluding a class of people based on their sexual orientation -- "demeans the institution of marriage and diminishes the humanity of the gay men and lesbians who wish to marry a loved one of their choice."

Advocates of same-sex marriage joined Kline's criticism, saying the court had offered no rationale for the law other than a discriminatory tradition.

"If other courts had followed this line of reasoning, we would still have segregation," said San Francisco City Attorney Dennis Herrera, whose office joined groups of same-sex couples in suits challenging the marriage law.

But the tone of Thursday's ruling, deferring to the judgments of elected officials and voters and prescribing a modest role for the courts, could appeal to the state Supreme Court. The court has issued several pro-gay-rights rulings, including decisions last year upholding parental status for lesbian partners, but seldom overturns state laws or executive decisions.

"What's significant is the level of review" in McGuiness' ruling, said Mathew Staver, chairman of Liberty Counsel, a conservative organization that represented opponents of gay rights and same-sex marriage in the case.

In the appeals court's view, he noted, "it doesn't matter whether judges disagree with the policy. What matters is whether the Legislature has a rational and legitimate basis to restrict marriage to one man and one woman."

Shannon Minter, legal director of the National Center for Lesbian Rights and a lawyer for 12 same-sex couples in the case, said he was confident that the state's high court would at least subject the law to closer scrutiny.

Under Thursday's ruling, the fact that lesbians and gays have never been allowed to marry "is a reason enough to exclude them from marriage," Minter said. "We may lose (at the Supreme Court), but if we do, they won't rely on reasoning like that. I think we'll win."

The plaintiffs plan to file their appeals next month, and the Supreme Court would then have up to 90 days to decide whether to let Thursday's ruling stand or -- as generally expected -- accept the case for review. A hearing could take place in late 2007, with a ruling due 90 days later.

The high court already weighed in on an aspect of the case in August 2004, when it overturned nearly 4,000 same-sex marriages performed at San Francisco City Hall in February and March of that year on the authority of Mayor Gavin Newsom. The court said Newsom had exceeded his authority by defying the marriage law, but it did not rule on the validity of the law.

While the case was pending, the Legislature passed a bill that would have legalized same-sex marriage. But Gov. Arnold Schwarzenegger vetoed it, saying voter approval was needed because of a 2000 ballot initiative reaffirming the 1977 marriage statute and denying recognition of same-sex marriages performed in other states. Schwarzenegger said the issue should be decided in the courts.